The United States is realizing that the escalating tensions in the Far East, especially between China and Japan, should no longer be viewed as an opportunity to contain China. Instead, our first priority should be to get everyone to calm down.
At issue are the territorial rights over some forty piles of rock, most uninhabited, some barely sticking out of the water. These conflicts already have led to large nationalist anti-Japanese demonstrations in China and similar anti-Chinese demonstrations in Japan; saber-rattling activists planting their nation’s flag on some of the islands; and clashes between vessels of several regional nations—all fueled by increasingly hot rhetoric by public leaders. These smaller clashes look increasingly like the type of incidents that can spin out of control and lead to more serious conflagrations.
The United States, which keeps veering between seeking to engage China and moves to “contain” it, had at first—at least indirectly—urged the nations of the area to band together and push back against Chinese claims to many of the islands at issue. However, most recently Secretary Panetta called on China and Japan “to move forward and not have this dispute get out of hand” and emphasized that all parties share a responsibility to resolve the conflicts peacefully. And—the ever industrious U.S. think tanks have taken off their shelves a whole host of proposals that could defuse the crisis.
Disputes over maritime territorial rights fall under the United Nations Convention on the Law of the Sea (UNCLOS) and should be settled in the International Court of Justice (ICJ). (The fact that the United States did not ratify the treaty involved seems immaterial because Washington typically operates as if it were committed to UNCLOS.) But such settlements take years.
In the short term, the think tankers are calling on China and Japan to establish a hotline so that their leaders will be better able to nip in the bud any unintended confrontations. Moreover, both nations are urged to declare unequivocally that “military force is not an option.” A more ambitious plan calls for a return to a derailed 2010 agreement for the joint development of gas fields in the South China Sea. The Economist suggests that the nations involved should do the environment a favor and turn the islands and surrounding seas into marine protected areas to combat overfishing, a problem that seriously threatens the economies and ecology of the region.
Douglas H. Paal of the Carnegie Endowment for International Peace points out that to combat overfishing, China, Vietnam and Taiwan have already “initiated fishing seasons, periodic bans, and limits on sizes of catches to support sustainable harvesting, but these are not harmonized and often conflict.” Hence Paal calls “greater control of the fishing fleets, with effective sanctions on misbehavior under rules agreed upon in common, [an] achievable and responsible goal.”
One must acknowledge that islands are not fought over simply as real estate but because they serve as markers for determining maritime rights. According to a widely followed reading of international law, a nation’s exclusive economic zone (EEZ) extends two hundred miles off its shores. Thus, if nations can populate and prove ownership over tiny islands in their near seas, they can expand their EEZ and gain access to the surrounding natural resources—not only fish but also coveted fuels and minerals that lie beneath the seabed. Hence, for nations such as China and Japan, whose economies are highly dependent on the secure access to and development of such resources, these islands are much more than “piles of rocks.”
In Sharing the Resources of the South China Sea, Mark Valencia, Jon Van Dyke and Noel Ludwig suggest establishing “regional sovereignty” over the islands in the South China Sea among the six claimants, allowing them to collectively manage the islands, territorial seas and airspace. Of course, this would require an agreement among the parties as how to share the spoils.
Another option, put forward by Peter Dutton of the Naval War College, would emulate the resolution of the dispute over Svalbard, an island located between Norway and Greenland. The Treaty of Spitsbergen, signed in 1920, awarded primary sovereignty over Svarlbard to Norway but assigned resource-related rights to all signatories. Applying this model to the South and East China Seas likely would entail giving sovereignty to China while permitting other countries to benefit from the resources. Though, at least in the near term, such a solution is unlikely to be accepted by the other claimants.
Still others have suggested declaring a moratorium on any exploration until the tensions are defused and conflicts are worked out. And a troika of foreign ministers in the region, including nations not directly involved such as Indonesia and Australia, has been urged to help work out an evenhanded solution.
Those who hold that all these suggestions are naive should note that such settlements do take place. One case will have to stand for several others. In 2009, five years after the decades-old dispute was brought to court, the ICJ settled a dispute between Ukraine and Romania over the Black Sea, whose seabed holds an estimated ten million tons of oil. One key issue was whether the Serpent Island would be considered a cliff or an island. The Romanians claimed it was “a cliff” (hence irrelevant to territorial demarcation) while Ukraine held it was “an island” and thus that Ukraine’s maritime boundaries extended beyond Serpent Island’s shores. The ICJ ruled it a cliff and delivered a judgment that granted Romania about 80 percent of the disputed area (though the oil was more concentrated on the Ukrainian side). Both sides accepted the decision.
If cooler heads prevail and Washington continues to throw its weight in support of tensions reduction and conflict resolution by negotiation, some of these proposals or others like them may carry the day. All sides surely realize—given the fragile state of the global economy, the political transition in China, the rise of nationalism that threatens to spin out of control—that this is a particularly poor time to escalate tensions.
Resource allocation is a contentious issue, but raw materials have a virtue: they can be divided. Disputes over such assets do not have to be settled in a winner-takes-all fashion, allowing all the nations involved to gain some of the spoils and save face. In contrast, if the clashes spin out of control, the disputants and the bystanders will all be losers.
China Mends Fences in Sea Dispute
It appears to be showing flexibility in efforts to devise a code of conduct for South China Sea claimants.
RFA
China’s territorial claim to the South China Sea includes two disputed island chains.
As Beijing flexes its muscles over its territorial dispute with Japan in the East China Sea, it is mending fences with Southeast Asian nations after a spate of tensions in the contested South China Sea.
Following much prodding and diplomacy, China appears to be showing some flexibility in its approach towards drawing up a code of conduct with the Southeast Asian nations aimed at avoiding clashes over competing territorial claims in the vast sea, diplomats in the region told RFA.
Although they are skeptical of any early breakthrough for a legally binding document between China and the Association of Southeast Asian Nations (ASEAN) to guide behavior in the sea, there is optimism that negotiations will occur on a sustained basis.
“We see some flexibility to discuss the COC with ASEAN,” one Southeast Asian diplomat said, referring to the elusive Code of Conduct or COC which ASEAN—comprising Brunei, Burma, Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand and Vietnam—has been striving to devise with Beijing for a decade.
In an initial display of seriousness that it is prepared to come to the table, China sent its senior officials to Cambodia last week to informally discuss with their counterparts from ASEAN the prospects for drawing up a code, officials said.
This is the first meeting between the two sides specifically on the maritime dispute since ASEAN plunged into a crisis two months ago when foreign ministers of the 10-member bloc failed to issue their customary joint statement at the conclusion of their annual meeting hosted by Cambodia, China’s top ally in Southeast Asia.
Some ASEAN diplomats had charged that Cambodia had been influenced by China not to incorporate in the statement the views of ASEAN member states the Philippines and Vietnam, which had tiffs earlier this year with Beijing over islands and reefs in the South China Sea, causing an impasse at the meeting.
The ASEAN-China Senior Officials’ Informal Consultations on the Code of Conduct (COC) in the South China Sea, as last week’s meeting in Phnom Penh was officially called, was among a series of discussions in preparation for the ASEAN summit and the East Asia Summit in November.
“Compared to two months ago, when there was complete reluctance to come to the table, China appears willing to sit down and talk,” said one Southeast Asian official, who was briefed on the talks but spoke on condition of anonymity.
“Indirectly, they may be feeling the heat from the mounting criticism over what happened at the meeting in July which was a big blow to ASEAN,” the official said.
“But China has also asked the ASEAN states to do their part by reducing tensions and not conducting border incursions and creating a conducive environment for any future talks. They don’t want us to bring in third parties [the United States] over the conflict and want us to stick to the 2002 declaration,” the diplomat said.
Under a 2002 agreement for managing their overlapping territorial claims, ASEAN and China adopted a Declaration on the Conduct of Parties in the South China Sea, called DOC as a first step towards a binding code of conduct.
But in a reflection of the sensitivity over the issue, it was only last year—after 10 years—that they agreed on a set of guidelines to implement the declaration that was aimed at laying the groundwork for discussions on the regional code of conduct.
Ray of hope
The new ray of hope for achieving a COC comes after extensive diplomacy, including U.S. Secretary of State Hillary Clinton’s trip to Southeast Asia and China, with a meeting with Chinese President Hu Jintao.
Chinese leaders told Clinton—who has often emphasized that freedom of navigation in the South China Sea is a U.S. “national interest”—that they want to pursue the COC, U.S. Ambassador to China Gary Locke told a forum in Washington last week, saying the talks between the two sides were “very good.”
“I’ve also heard from many prominent Chinese academics that China would like somehow to return to the status quo, that they would like to lower the temperature,” Locke said.
Chinese Foreign Minister Yang Yechi had also visited Indonesia as well as Malaysia and Brunei, giving reassurances that diplomacy was still on track.
Cambodian Prime Minister Hun Sen, embarrassed by the failure by his country as 2012 ASEAN chairman to forge an agreement on the foreign ministers’ joint statement, also made a trip to China this month, meeting Prime Minister Wen Jiabao.
Hun Sen won assurances from Wen that Beijing will “closely work” to make the upcoming East Asia Summit which Cambodia will host a success,” Chinese media reported.
Southeast Asian diplomats said a key objective is to get an initial ASEAN-China accord on the COC before the November East Asia Summit, to be attended by leaders of ASEAN as well as China, Japan, South Korea, India, Australia, New Zealand, Russia and the United States.
Key elements of the COC have been agreed upon by ASEAN member states whose foreign ministers will meet to consider a full draft document on the sidelines of the U.N. General Assembly in New York this coming week, the diplomats said.
“We are now in the process of spelling out the draft [of the code] and we hope to be able to share it with my ASEAN foreign minister colleagues when I meet them in New York,” Indonesian Foreign Minister Marty Natalegawa said, according to the Jakarta Globe newspaper.
“The development of the South China Sea [issues] reminds us how we desperately need the code of conduct, [so] I’m trying to use the momentum,” Marty said, as Indonesia asserts a leadership role in ASEAN to deal with the South China Sea issue, Asia’s biggest potential military flashpoint.
Cambodia or Thailand, which is the ASEAN coordinator for China issues, could host another round of informal talks between senior officials from ASEAN and China on the COC before the East Asia Summit.
“Both sides might also issue a joint statement to commemorate the 10th anniversary of the DOC at Summit,” an official involved in the planning of the summit told RFA, referring to the declaration adopted in 2002 in Cambodia to set the stage for the regional code of conduct.
Beijing has maintained all this while that it wants to resolve the South China Sea territorial conflicts on a bilateral basis with ASEAN members Brunei, Malaysia, the Philippines and Vietnam, which have competing claims with China.
China claims sovereignty over nearly all of the resource-rich South China Sea, which is also home to important shipping lanes. It is also locked in a territorial tussle with Japan over disputed islands in the East China Sea.
Bloc
Southeast Asian officials say ASEAN would negotiate the COC with China as a bloc but not in the specific delineation or settlement of the claims between the claimant states.
ASEAN’s role “is not to deal with the claims themselves but in the broader setting up of the framework which would allow for a peaceful resolution of these claims,” Singapore Foreign Minister K. Shanmugam said, according to the island state’s media.
Beijing has stressed that ASEAN should have no role in negotiating on behalf of the four members who were claimant states.
“For China, the COC is only a tool to promote mutual trust over the South China Sea and not to resolve disputes. They stressed this again at the Phnom Penh meeting last week,” a Southeast Asian diplomat said.
Still, as the COC is being drafted, China has to grapple with various basic questions—which it has brushed off previously—over its claim to the South China Sea.
While officials have to first pin down the South China Sea area to be governed by the code, there is much uncertainty over the territory China claims—represented by the nine-dashed, U-shaped line encircling most of the sea on Chinese official maps.
The location of those dashes has never been pinpointed as China has not supplied the coordinates for them. The nature of the Chinese claim has also not been clearly defined.
In addition, there is the question of the Paracel islands’ inclusion in the code’s area of application. Vietnam still maintains its claim to the islands although China seized them from its fellow communist neighbor in 1974.
Uncertainty
Former ASEAN Secretary-General Rodolfo Severino said the uncertainty over where a “binding code of conduct” would apply was one of the factors cited for downgrading the 2002 ASEAN-China agreement from a legal code to a political declaration.
“Is the uncertainty of its area of application still a factor in and an obstacle to its adoption,” he asked.
“If these [outstanding] issues were fudged in the proposed document, as seems most likely to be the case at this time, how would the problem be overcome? What would the formulation be?”
Severino said one fundamental reason why the problems arising from the conflicting claims in the South China Sea are so difficult and intractable is not only the size and strategic location of that body of water but also that all the claimants feel that their footholds in the sea are essential to what they consider as their national interests.
“Therefore, the disputes in the South China Sea cannot be resolved any time soon, if at all. The most that can be done is to prevent those disputes from developing into armed conflict. This could be the overarching aim of any code of conduct that ASEAN and China might produce.”
No comments:
Post a Comment